Monday, October 6, 2008

Earlier this year, the California Supreme Court invalidated a state law that prohibited same-sex marriage. Applying state constitutional law, the 4-3 ruling held that the law unjustifiably denied equal protection to gays and lesbians. In November, voters in California will consider a ballot initiative that would amend the state constitution to prohibit same-sex marriage, which would effectively overrule the court's decision.

Recently, a group pushing for the amendment extended gratitude to Senator Barack Obama as it mobilized voters to support the initiative. Although Senator Obama opposes same-sex marriage, he also opposes the ballot initiative and supports the California Supreme Court decision, a "spinderella" move that Obama and Senator Hillary Clinton both made during the Democratic primaries. Senator John McCain opposes same-sex marriage as well, but in 2004 he also opposed a Bush-sponsored U.S. constitutional amendment banning same-sex marriage. McCain argued that the proposed amendment was "un-Republican" because it would interfere with state autonomy. McCain, however, supports the California initiative. Both presidential candidates are spinning and tip-toeing on the issue because they want to maximize their appeal to moderate and independent voters, but they also must hold on to support from core groups within their respective parties.

Although Obama opposes the California ballot initiative, Project Marriage, an organization that favors the measure, believes his candidacy could help its cause. The organization hopes that Obama will bring out enough black socially conservative and evangelical voters who, though Democrats, are pro-life, antigay, and committed to conservative religious values. Black religious conservatives, unlike white evangelicals, tend to vote for Democrats, due to the party's more liberal record on civil rights in modern U.S. history. But conservative organizations have successfully exploited social conservatism among blacks to advance discriminatory agendas, particularly in the area of gay rights. This has created some highly unusual political coalitions. One black minister from Chicago, for instance, boldly proclaimed that he would march with the Ku Klux Klan in order to protest the legalization of same-sex marriage (yes - this really happened).

Conservative groups also mobilized black opposition to gay rights in order to secure the passage of anti-gay legislation in Ohio and Colorado during the late-1990s. In Colorado, one conservative group released a video called "Gay Rights, Special Rights," which visually contrasted scantly clothed participants in gay and lesbian festivals and the thousands of people who attended the March on Washington. The group sought to portray gays and lesbians as a bunch of privileged, promiscuous, party-goers, who do not need "special" civil rights protection. But if we used this same logic and looked at imagery from Freaknic (an annual party sponsored by black fraternities, known for having heaps of alcohol and "hook-ups") and the March on Washington, then one could legitimately conclude that today's blacks do not deserve civil rights.

Opinion polls show that all racial groups oppose same-sex marriage. So singling out blacks for condemnation on this issue, as some liberal commentators have done, applies a double-standard. But black alignment with conservative political organizations produces specific harms for black people, which makes black homophobia a self-defeating and ultimately dangerous political strategy.

First, when blacks help to legalize anti-gay discrimination they directly harm gays and lesbians who are also black, including many vocal supporters of racial justice. Also, black alignment with conservative political organizations in opposition to gay rights, emboldens social movement organizations that also resist laws and policies that would empower communities of color and strengthen the enforcement of race-based civil rights. Furthermore, the effort to constitutionalize discrimination against disparaged social groups and to restrain their liberty should trouble all blacks, given the roles that legally sanctioned inequality and repression, including sexual abuse and stigmatization, have played in the nation's history of racial oppression. When blacks approve anti-gay discrimination and the denial of liberty to gays and lesbians, they condone the very style of legal power that was employed to harm and which continues to harm blacks and other people of color.

My argument does not seek to equate homophobia and racism (a misguided analogy that gay rights advocates frequently invoke), but rather to demonstrate that they both constitute gross departures from the norms of equal protection and due process that are central to any progressive and anti-racist understanding of the constitution. Because anti-gay laws and policies undermine and erode these norms, black homophobia is inevitably anti-black.

I would also add that when Democratic politicians (regardless of race) oppose same-sex marriage, they too legitimize discrimination. Accordingly, liberal activists should hold them accountable for their positions, rather than giving them a free pass to abandon their constituents. The left, including the loudly anti-Republican and proudly liberal crowds at Daily Kos, HuffingtonPost, and MoveOn have been noticeably silent regarding Obama's opposition to same-sex marriage and his conservative stances on other issues (such as his support of the death penalty as punishment for rape and his recently articulated belief that the Second Amendment protects an individual -- rather than just a state -- right to bear arms). Obama's election will only bring symbolic progress if, as president, he readily abandons or fails to take on progressive concerns. And he will undoubtedly toss aside progressive issues if the left does not engage in any meaningful analysis and dissent. The right holds its governmental leaders accountable, and it often forces Republicans to embrace conservative values (hence McCain picking the solidly pro-life Palin). Democrats on the other hand have earned an often-deserved reputation for being "weak," precisely because they fail to defend liberal values against intense political opposition.

I am not sure that California blacks will provide enough swing votes to secure passage of the proposed amendment, but if religious Latinos, another group that conservative organizations often exploit, join blacks in supporting the amendment, then the strategy might succeed. Persons of color need to realize that their support of discrimination against other vulnerable groups weakens an already fragile and dwindling societal commitment to civil rights agendas, and it harms blacks who themselves are gay or lesbian. Thus, their actions ultimately have a detrimental effect on the very communities they claim to serve.

5 comments:

aSeaNamedSolaris
said...

I do not understand why Blacks resent the LGBT community equating homophobia with racism. Would they also resent women from equating their movement with racism or Jews anti-semitism? What each group faces is the "normal" group questioning their right to exist, live, work and play in the world. The faces may be different but the principles and the struggle are exactly the same. Does the disenfranchised group think their struggle is more important than any other affected group? Of course there are issues that are idigenous to each group but these do not make them (the group) special just different. Great article by the way and love the site :)

I have written a lot on this subject, and I think many of my articles have been posted on the internet by the various journals. But I'll try to give you a brief synopsis.

First, I admit that using the "sameness" approach to justice sounds appealing. It can create empathy ("this is just as bad as racism, and we are treating glbt people unfairly, just as we treated blacks"), and it can provide a framework for courts and lawmakers to prohibit sexual orientation discrimination ("this is just like racism, so it is unlawful"). Law loves argument through analogies and precedent. BUT....

You run into a host of difficulties. There's an article called "The Discourse of Equivalents," written by Jane Schacter (another law prof). When you try to equate groups and experiences, you end up agreeing with the courts and conservatives who say that civil rights is a very narrow and inflexible concept. In order for groups to get protection, they have to show that they are identical to other groups. But they may suffer harms and injustices in different ways, which warrent protection by the state as well.

You also leave out people at the "intersections" (e.g., black gay people) when you compare groups.

Finally -- to really answer your question, I think the resentment comes from (a) homophobia among some people and (b) frustration that racial inequality is alive and well, but not acknowledged by people making the comparisons. With respect to (b), there is a fear that paying attention to other forms of discrimination will cause society to overlook race -- especially when racism is treated as a thing of the past (and now we need to "get rid of homophobia TOO"). I think this is an exaggerated fear, but it simply proves how our perspectives shape our understanding of society.

Sorry for the long response. I hope this helps. Thanks for dropping by. Please return -- and spread the word!

Thanks for the intel regarding "sameness". I was not familiar with this doctrine until your response. I learned something new today! I did a brief search and came across an article by a Black Lesbian, Catherine Smith, in the Wisconsin Law Journal titled "Queer as Black Folk?" Actually, the last part of your response confirmed my suspicions. It's actually about resentment, frustration, fear and ultimately prejudice. This "sameness" is NOT what I was refering to. It seems rather illegitimate, the arguments for or against. I mean, when I say the struggle is the same I am not comparing LGBT people to Black People (that's silly). I simply mean the struggle pursuing the same rights as the "normal" group are the same, i.e., protest, boycott, lobbying, legislation, etc. You are struggling toward the same end, the same goal: the right to exist and live and work and play in the open. I would think it apparent or intuitive that the LGBT community have issues peculiar or indigenous to them, as do the Black community, women, etc. Yet when a comparative analysis comes up, people pit themselves against each other rather than aligning with their interests. I am certain this is because of the lingering fumes of racism and prejudice. If I read it correctly, sameness is comparing PEOPLE or CULTURE. I am comparing METHODS. The article by Ms. Smith points to "superordinate methods" (wherein different, naturally antagonistic groups work towards a goal of strategic importance to both) as an answer to help bridge the gaps between folks. I thought this was funny 'cause I would think that tactic obvious (the enemy of my enemy is my friend, yes?) and also because that's precisely what LGBT people were trying to do with the Black community in her article but she was categorically repulsed by it. But again, thanks ever so much for the response (which has lead to even more reading, gee, thanks, lol).

Great analysis. There's a lot more available to read. I have a few articles -- printed in the Conntecticut Law Review, the Buffalo Law Review, the Cornell Law Review, and in the Michigan Journal of Race and Law on this subject. Other authors include Francisco Valdes, Elvia Arriola, and Devon Carbado. Happy reading.

About Me and the Blog

Professor Darren Hutchinson teaches Constitutional Law, Remedies, Race and the Law, and a Civil Rights Seminar at the University of Florida Levin College of Law. Professor Hutchinson also holds the prestigious Stephen C. O’Connell Chair.
Professor Hutchinson received a B.A. from the University of Pennsylvania and a J.D. from Yale Law School. Before teaching law, Professor Hutchinson practiced commercial litigation at Cleary, Gottlieb, Steen and Hamilton in New York City. He also clerked for the late Honorable Mary Johnson Lowe, a former United States District Judge in the Southern District of New York.
Professor Hutchinson's research has appeared in many prestigious journals including the Cornell Law Review, Washington University Law Review, UCLA Law Review, University of Michigan Journal of Race and Law, and University of Pennsylvania Journal of Constitutional Law.
He has also presented his research at numerous universities, including Yale, Stanford, Columbia, University of Pennsylvania, University of Michigan, University of California at Berkeley, University of Virginia, Cornell, Georgetown, and Boston University.

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